Editor's Note :

We are expecting one or more decisions in argued cases tomorrow at 10 a.m. We will be live-blogging the opinion(s) as they are released. However, there is no live blog of tomorrow’s oral argument in King v. Burwell. We will have coverage of that argument as soon as possible after it is finished; the transcript should be available tomorrow afternoon, and the audio will be available on Friday. Wednesday's live blog will be available here.

The week in review: June 17-21

Posted Fri, June 21st, 2013 3:56 pm by Tejinder Singh

Before we advance to what promises to be a historic end to the 2012-13 Term, let’s take a look back at the week that was. We had eight opinions and four cases granted. And while last week was all about unanimity, this week the Justices treated us to sharp disagreements and pointed dissents. Here is your week in review.

The highest-profile decision was Arizona v. The Inter Tribal Council of Arizona, Inc., in which the Court ruled, in an opinion by Justice Scalia, that Arizona’s proof-of-citizenship requirement for voter registrants is preempted by the National Voter Registration Act, which requires states to “accept and use” a federal form for voter registration. The Court explained that when read in context, the phrase “accept and use” means that the states must treat the form as sufficient, and because all the form requires the voter to do is state that he or she is a citizen, states are not permitted to require additional proof. The decision is a setback for the state of Arizona, as well as for Alabama, Georgia, and Kansas, which have similar laws. However, Lyle and Marty Lederman have noted that the Court laid out a roadmap for states that want to restrict voter eligibility when it reasoned that states have the power to decide who can vote. The decision could therefore have substantial implications in future cases involving felon disenfranchisement, nonresident voters, and other limitations on voter eligibility. Moreover, Arizona officials appear to be pursuing an administrative route to get the federal government to require the proof that the state cannot itself demand. Justices Thomas and Alito dissented.

The Court also handed down three important criminal cases, and – in an unusual pattern for this conservative Court – the criminal defendants prevailed in two out of the three. First, in Alleyne v. United States, the Court held, in a five-to-four decision by Justice Thomas, that any fact which increases the mandatory minimum sentence for an offense must be found by a jury, not a judge. The case settles a lingering question about the jury’s role in determining sentences, and does so resoundingly in the defendant’s favor by requiring the government to prove its case for a harsher minimum sentence beyond a reasonable doubt. Mike Gottlieb has our coverage.

In Descamps v. United States, we got as close to unanimity as the week allowed. Justice Kagan wrote an exceptionally lucid opinion, joined by seven of her colleagues, holding that when state statutes are broader than the generic “violent felonies” enumerated in the Armed Career Criminal Act, a state law conviction cannot serve as a predicate for an enhanced sentence under the federal statute, and a sentencing court cannot utilize the so-called “modified categorical approach” to reach the harsher result. This area of the law doesn’t lend itself particularly well to plain English explanations, but the bottom line is that the government won’t be able to use as many prior criminal convictions to ratchet up sentences for federal firearm violations. Justice Alito dissented. If you want just a little bit more detail, I had our initial coverage, and Daniel Richman has more. If you want the full monty, check out Justice Kagan’s opinion, which is a very helpful read and should do a lot to clarify this area of the law.

While the sentencing-related cases didn’t go the government’s way, it prevailed in Salinas v. Texas, in which Justice Alito, writing for a plurality of the Court, held that prosecutors can use a person’s silence against him if the silence occurs during a “precustodial” interview. Mr. Salinas had come into the police station voluntarily and was free to leave, but during the interview he was silent when asked about certain details of the crime he was accused of committing. That silence was later used against him at trial, and he argued that this violated his Fifth Amendment right to remain silent. The plurality opinion held that because he did not expressly invoke his right in response to the officers’ questions, it was not at issue. Justices Scalia and Thomas would have gone even further than that, and stated in a concurring opinion that even if Salinas had invoked his right to be silent, it would not have mattered because nothing the police did required him to give self-incriminating testimony. The result is surprising given the tenor of the oral argument. Lyle has more details.

That does it for the criminal docket. We also had two cases relating to antitrust law. In Federal Trade Commission v. Actavis, the Court held, in a five-to-three decision by Justice Breyer (Justice Alito was recused), that antitrust lawsuits challenging so-called “reverse payments” may proceed. Reverse payments are payments from the manufacturers of brand-name drugs, made to the manufacturers of generic drugs to convince them to drop challenges to the brand-name manufacturer’s patents and stay out of the market. They are considered anti-competitive because the price of drugs drops precipitously once generics enter the market – often by as much as eighty-five percent. Consequently, brand-name manufacturers have a huge incentive to maintain their monopoly, and generic manufacturers can often make more money by taking a reverse payment than they could make by actually selling drugs. The big loser, of course, is the public, which has to pay inflated prices for drugs. In this case, the Court took a middle road. The manufacturers had argued that reverse payments are lawful so long as they do not extend the patent monopoly beyond the term of the patent. The Court rejected that argument, reasoning that many of these patents are being challenged as invalid. The FTC, on the other hand, argued that reverse payment agreements should be regarded as presumptively unlawful. The Court rejected that argument too, and held that the normal antitrust “rule of reason” applies in reverse payment cases. Lyle has our coverage.

In American Express Co. v. Italian Colors Restaurant, the Court held, in a five-to-three decision written by Justice Scalia (Justice Sotomayor was recused), that when an arbitration agreement includes a provision stating that classwide arbitration is not allowed, the provision is binding, even as to the arbitration of antitrust claims. In this case, a group of merchants alleged that American Express had engaged in anticompetitive behavior, and they tried to arbitrate those claims as a class. American Express argued that they had to bring individual claims. The problem with that, from the merchants’ perspective, is that the costs of bringing a single antitrust claim (hundreds of thousands of dollars) dwarf the potential damages (closer to ten thousand dollars). The Court, however, didn’t think that problem was important enough to overcome what it saw as the clear language of the Federal Arbitration Act – which, in the Court’s view, does not permit a court to modify an arbitration clause merely because the costs of arbitration outweigh its benefits. Mike Gottlieb has our early coverage, and David Garcia and Leo Caseria have more.

Next up, the Court issued a First Amendment holding in Agency for International Development v. Alliance for Open Society. There, the Court held, in a six-to-two decision by Chief Justice Roberts (Justice Kagan was recused), that the First Amendment does not permit Congress to require that any group that accepts funding for combatting HIV/AIDS, tuberculosis, or malaria abroad have a “policy explicitly opposing prostitution.” Recognizing that the government does have some power to condition the receipt of federal funds on particular speech, the Court drew a line between conditions on funds that are internal to the spending program (for example, a requirement that funds, if accepted, must be spent to promote a particular agenda), and conditions that are external to the program (for example, a requirement that in order to receive public health funds, the recipient must state its support for the war on terror). Because the requirement to explicitly oppose prostitution in all of an organization’s operations fell outside the proper scope of the public health spending program, the Court held it unconstitutional. Lyle has full coverage.

Finally, in Maracich v. Spears, the Court held in a five-to-four decision by Justice Kennedy that the so-called “litigation exception” to the Driver’s Privacy Protection Act of 1994 does not permit attorneys to access information about drivers protected by the act for the purpose of soliciting business. The Court acknowledged that the language of the exception, which allows the use of driver data “in connection with any civil . . . proceeding in any Federal, State, or local court . . . including . . . investigation in anticipation of litigation,” could be read broadly enough to encompass solicitation, but concluded that for various policy reasons, Congress likely would not have intended that result. The decision is a major blow to plaintiffs’ lawyers, and for the attorneys in this case, it might result in substantial monetary penalties for violating the act, though the Court hinted that a full fine might be excessive in this case. Kevin Russell has our coverage.

And that’s the week! Tune in to our live blog Monday at 9 a.m. for orders from the June 20 conference, followed by more opinions at 10. With eleven cases still to go – including the same-sex marriage, affirmative action, and voting rights cases – next week promises to be newsworthy and thought-provoking. We’ll see you then.

[Disclosure: Goldstein & Russell, P.C., whose attorneys (including the author) work for or contribute to this blog in various capacities, filed amicus briefs in support of Matthew Descamps in Descamps v. United States and in support of the FTC in FTC v. Actavis. The firm was also among the counsel to Genevevo Salinas in Salinas v. Texas, and it is among the counsel to the respondent in Air Wisconsin Airlines.]

Merits Case Pages and Archives

On Monday the Court issued orders from its February 27 Conference. Two new cases were granted. On Tuesday the Court announced its decision in Direct Marketing v. Brohl. This is the second week of the February sitting.

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